José Filipe Nogueira
Lawyer
Honorable Judgeof the Juvenile and Family Court for the District of Seixal
2nd CivilCourt
Process nº 3841/05.9TBSXL
António de Sousa Amaral, resident at Quinta da Mata nº4 3rd left, Corroios, holder of identity card nº 34142109 and bearer of contributor card nº 115780327, divorced, natural of the parish of Torredeita, Viseu county, is thus accessing to the invitation constant of dispatch of pages 64-66, presents, in the terms provided in the nº 3 of article 508º of C.P.C. new initial articulated for implementation of factual elements considered missing, which makes as followed and with the next elements:
1º
In the constancy of marriage between the defendant and Isabel Maria Costa Basílio (his former spouse) celebrated a contract of mutual with mortgage with Caixa Geral de Depósitos (a bank) by which gave them the amount of € 2.720.00$00 (€ 13.567.30) with the aim of acquiring by borrowers destined to residential property.
2º
As insurance guaranty of payment of mutual agreement mentioned, it was through he mentioned benefits created a mortgage about the urban property which was achieved by them, at the location of Ferreira de Castro street, lot F, 11º at Miratejo, Corroios parish, Seixal county, as presentation 07/310884, Av. 1 legally registered at Conservatory of Building Registration (Cfr. Doc. together with nº 1 with Initial Request of Injunction arrest which is added to these principal records which are here reproduced)
3º
Due to lack of fulfillment by those who agreed, not fulfilled the obligations of refund of the amount which assumed before CGD, the same presented in the day 25.06.1996 against those who agreed an executive action to collect the right amount (Cfr. Doc. which is added under nº1 and fully reproduced) which followed it´s terms through 2nd Civil Court of the Court of Seixal county, under the file nº 536/96.
4º
In the pendency of the mentioned mortgage execution, the defendant hired, with the author, his brother, which was reduced to a formalized contract of buying / selling celebrated in April 9th 2002, the purchase of the bonded property, being agreed that the price of selling to be paid by the author was equal to the amount that had to be paid to Caixa Geral de Depósitos, while as mortgage creditor (Cfr. Doc.added under nº 4 with Initial Injunction Arrest Request which is added to these main records and which are reproduced)
5º
It was agreed, that in the promise contract mentioned, which the defendant promised to sell the property identified in the article 2º which the defendant promised achieved it by the price due to Caixa Geral de Depósitos to allow this to grant the distrate of voluntary mortgage, with the extinction of executive mortgage which – as indicated – was instaured.
6º
Later, and at 29th November 2002, by granted attorney in the 2nd notary´s office of Faro, the defendant constitutes his representative the author, granted him powers to, in his name and representation, to concede the promised notary´s document of buying / selling the mentioned property, which both agreed, more stating that the person who ordered – the author here – was allowed to make business with himself and that the mentioned document, by recognizing and declare that it was written in the interest of the mandatory, couldn´t, without permission of this to be revoked or not expired due to death or disqualification of the mandatory, everything in agreement with the article 265, number 3175, number 2, both of Civil code, staying additionally the procurator instaured, fully dismissed of showing bills (Cfr. Doc.together under nº3 of Initial Injunction arrest Request which is added to the main documents here reproduced)
7º
Meanwhile, and because the 1st defendant married, at 6 July 2002, with the here 2nd defendant (Cfr. Doc.nº2 which is added and reproduced) expected the author of this authorization expressed for the celebration of promised contract which is about the same promise adjusted at 9th April 2002, permission which the same allowed through declaration certified through notary´s office (Cfr. Doc.together with nº6 of Initial Injunction arrest Request which is added to the main documents here reproduced)
8º
In compliance of what has been agreed at the promise contract of buying / selling, which the author proceed to the payment of the value claimed through CGD, the amount of € 59.850.75, value that the author deposited – through check nº 4523338150, through bank account of BCP, in the mutual institution (Cfr.Docs which, under numbers 3 and 4 are together and now reproduced)
9º
In the sequence of that deposit / payment, the Caixa Geral de Depósitos granted the distrate of mortgage and extinguished the executive action mentioned in 2º, by uselessness supervening (Cfr. Docs which are under numbers 5 and 6 together now reproduced)
10º
The defendant proceed the delivery of the property of the contract buying / selling which the author, delivering the keys, transmitted in favour of the author the possession of the property in price, possession which Because not to jeopardize other´s rights, and in any case the author is not aware, was in good-faith.
11º
Following knowledge, of the property´s owner, due to delivery of material through defendant and the keys were and have been symbolic expression, the author, in good-faith, proceed the repairs in the property with the cost of € 8.898.
12º
As truth, at the date in which was granted by the defendant to the author the possession of property, this property was in bad shape, whether paints on walls and the floor of several parts of the house, dishes, plumbers, kitchen, bathroom.
13º
Such destruction, due to it´s intensity, removed housing conditions.
14º
The mentioned repairs, carried through and with the cost of the author, namely electrical devices, locks in the doors, treatment of floor, general paints, new dishes, new bathroom devices, toilets, among others, as it is in the documents, numbers 8 to 20, together with Initial Injunction arrest Request which is added to the main documents here reproduced.
15º
The defendant, however, violated the obligations which freely assumed during the celebration of contract.
16º
With effect, at the day 26.07.2004, the defendants proceed to the sale of the property, object of that same contract to Patrícia Antunes Mamede, single, adult, resident at Bento de Jesus Caraça street, nº6 2nd right floor, Laranjeiro, Almada, which formalized through writing of both recognized at the notary´s office of Almada, in the sheets 34 to 36 of the several writings book nº 170-M (Cfr.Doc nº7 fully reproduced)
17º
Such alienation by the Defendants here came subsequently to be subject to final registration in the competent Conservatory of Registry Office, as registral presentation, made at 22/10/04 in favor of Patricia Antunes Mamede, single, adult, resident at Rua Bento Jesus Caraça, no. 6, 2nd right, Laranjeiro, Almada."
18º
It results from the exposed which, with the sale in favor of mentioned Patrícia Antunes Mamede, was definitively not fulfilled the contract which has been celebrated with the author, not being possible to obtain the specific execution of promise contract in the way in which the new owner will be third in good-faith.
19º
The 2nd defendant, actual wife of 1st defendant, intervened, also, in the sale of the property made to Patrícia Antunes Mamede.
20º
The 2nd defendant also knew that she also previously authorized the sale of the property to the author here, which, as her husband, here 1st defendant, promised the sale.
21º
Under the article nº 441º of Civil Code, all amount delivered by the buyer to the person who sold it, presumed that has character.
22º
So, being the price paid by the author (as buyer) to the defendant, the character of sign, has the faculty of demanding twice of what used, which is € 59.850.75x2= € 119.701.50
23º
To this amount also increases the value used by the author with repairs, corresponding the repairs needed to restore to the property housing conditions, which were at his cost conducted under article nº 216 Civil Code.
24º
The repairs conducted by the author, when he was owner legally, through definitive possession of title transmitted through brother, are, indeed, in the juridical concept of “needed repairs”, because it was indispensable to return housing conditions.
25º
Such repairs, which should be understood as needed, through which, the author returned housing conditions.
26º
Of the legal way it is understood that the concept of housing repairs needed as repairs and costs performed to ensure minimal maintenance / housing conditions, caused such costs.
27º
Under article number 1273 ex vi of the article 216, both Civil code, the owner of good-faith (as such the owner of bad-faith) as the right to be compensated, being calculated his compensation in the terms of unjust enrichment.
28º
The way the legislator tried to obtain is to avoid illegal enrichment from the owner of the thing at the expenses of it´s owner, being through direct effect of repairs with costs of the author, the property saw increased it´s value more than it costs, which is, € 8.898.
29º
Effectively, the defendant cannot benefit from the patently works in the property that were made and fully borne by the author, since this would lead to an enrichment at the expense of impoverishment as provided in the article 473 Civil Code.
30º
Moreover, the property having been - as argued above - sold by the defendant to a third party, which was established in its meeting held in good faith, is no longer possibleto proceed to the survey of any of the improvements, and indeed sure would not be configurable to raise the paintings throughout the property, or raise the overhaul of floors, sanitary ware and taps…
31º
In fact, it is a evidence that in the price of the property to Patrícia Antunes Mamede was with absolute certain that due to the aspect of the property, in which, following the repairs, she owned the property with the aspect it was found, with the conditions that only through repairs had been returned at the expenses of the author.
32º
The 2nd defendant is also responsible by the failure of the contract adjusted with the author and for the debt reclaimed under the article 1691 nº1 a) of the Civil Code, due to her consent to the promised achievement and with agreement through contract, intervened when the property had new owner, violating the contract and permission.
32º
So, the action should be judged and the defendants condemned in the request.
33º
Preliminary to this action, was decreed the arrest of the property at the Urbanização Cerro Azul lot 53, parish of Quelfes, Olhão county, measure that happened at the 3rd Court of Seixal county under process nº6420/04.4TBSXL
Terms which should the action be judged by proved being the defendants condemned to pay to the author:
a. € 119.701,50, twice the amount that the author used
b. € 8.989,00 refund of the costs used by the author
c. the interest accrued on amounts above from the date of service and effective until full payment.
alternative, and if so do not understand, should the defendants be ordered to compensate the author of the amount of the price, simple, disbursed by him (€ 59.850,75)
plus the value of the repairs (€ 9.898), where everything plus the interest accrued onamounts above from the date of service and effective until full payment.
it nevertheless pay the costs of this litigation.
board: seven copies legal documents and
value: € 129.599,50
